ethical dilemma in photography

Great Debates
1

I wish I had more information to go on here, but I don’t. My friend told me about a photographer that does this but I don’t have any facts one way or the other. Until I know more, I’d like to put this in more in the realm of hypotheicals because it makes for a more interesting debate.

A photographer takes pictures of other people’s pictures and passes them off as her own. She doesn’t make copies from their negatives, or recreates the picture by standing in the same spot, she has their photo, lays it down, and takes a picture of that picture. That’s her work. You can’t tell that it was another photo there because her entire picture is that photograph. She then sells those photos as her own. Technically they are hers. She did create them, but she used someone elses work to make it possible.

Now, a few questions arise:

  1. Do the original photographers have any rights regarding this? Does copyright apply? What if the copyright has ended?
  2. Would it be ok to NOT inform potential customers that the work inside the work is not your own?
  3. Would you buy these pieces knowing that, while the photos are hers, the photo inside the photo isn’t?
  4. If she made changes to her photograph, by playing with the development time, lightening/darkening it, etc. would that change your answer?
  5. How is this different from taking a photograph of anything else (building, piece of art, copyrighted logo, etc.)?
2

ANSWER: Needs to be smacked in the head with the heaviest Nikon available.

Composition. Content. Thought.
versus
Ability to use technology to rip off somebody else.

I don’t care how it’s developed or altered.

3

Yes. A copy is a copy is a copy is a copy. It doesn’t matter if you used a Xerox machine, a scanner, or a recreation sculpted from your own feces… it’s still a copy.

Since it’s simply a copy of someone else’s work, copyright does apply. Unless the copyright has ended. In addition, if it’s a work that’s sold specifically to be part of the public domain, copyright wouldn’t apply, either.

Ethically, that’s a big no-no. Legally, I’m not sure… although I would think that some sort of Fraudulent Sale law could come into effect. If I’m wrong, please, someone correct me.

Absolutely not. I’d ask who the original photographer/artist was, and then try to buy from them, instead.

Nope. That’s the wussy way out. That’s like taking someone else’s song and just adding a few seconds of your own sound to it, then passing it off as your own.

Try putting a building in a scanner, and you’ll see what I mean. Taking a picture of a picture doesn’t change the work in the slightest… it simply copies it, with all the emotion, messages, intentions, etc. that came from the original artist. Whereas if you were taking a picture of the Chrysler building, that puts a 3-dimensional object and applies it to a 2-dimensional medium. It changes it, putting it into an image that matches what the original photographer desired and intended.

4

A more interesting question would be whether the photographer can make a montage from other people’s copyrighted photographs without their permission. My understanding is that the answer is basically, “No”. To the extent that the answer is “yes”, then the copier would probably invoke the Fair Use doctrine.

The example in the OP would almost certainly not be considered “Fair Use”. [sub]But I’m not a lawyer.[/sub]
Helpful link:
http://strategis.ic.gc.ca/SSG/mi05937e.html

5

I’d be interested to hear who this photographer is, and under what context she does what she does, as I can’t see any justification for her action based on what was presented in the OP. Speaking as a photographer, I can’t imagine any of us not realizing that simply taking a photo of a photo is blatant copyright infringement.

I myself have taken photos of photos because I was dealing with oversized work that needed to be FedExed to a magazine client. These were publicity stills and I gave them the appropriate credit. It’s disturbing for me to hear that someone would have the gall to argue that since I photographed the print, I can get copyright. It’s so illogical, it’s silly.

I have a sneaking suspicion that there is something more to what this photographer does. Or at least I hope so.

6

Is she still doing this? If it’s who i’m thinking of, she (I can’t remember her name either. I’m kind of glad I can’t remember her name) made a lot of money in the eighties selling copy-stand reproductions of Walker Evans, amoung others. The idea was, you know, the death of the author, a critique of the concept of originally in the face of mechanical reproduction…and so on…

I know about this because I was a student in the Photo department of NYU in the late eighties. And while many very silly postmodern ideas were embraced by both the students and the teaching staff at the time, the common consensue even then was that she was crap.

7

See, the thing is, when you copyright a work of art, you copyright the idea… my Illustration teacher suggests to his students what he calls the “Poor Man’s copyright”… where you snail-mail the original to yourself and leave it unopened (so you have proof for court that you came up with the idea first… date-stamped sealed envelope works well in proving this :D).

I wouldn’t be surprised if I wasn’t entirely correct in this, but there just ain’t somethin’ right about the behavior mentioned in the OP.

8

I’m trying to get in contact with my friend so he can provide me with more information. Hopefully I can fill you in on more details today. He just told me about it over the weekend and I thought it would be something interesting to put up here.

Basically, from what I know, she did use old photographs where copyright wasn’t an issue. Not that that matters, I’m asking the “what if” of what if she had done it with fairly recent photographs as well?
Also, it seems she did tell everyone that it was a photo of a photo. That was her whole point. She was “breaking the boundaries” of the art, or whatever, by doing this. So everyone that bought it from her understood what the picture was.
My take on this: If I knew what she was doing, I would not buy from her. But I wouldn’t fault anyone else from purchasing her works. Whether it’s right to steal it from the original photographer, copyright or not, I still haven’t fully decided. I’m leaning towards it not being ethical, changes or no. It’s sort of like me retyping War and Peace, but changing the margins and using a different font. It’s still War and Peace.

9

One thought. If you scupted a copy of a photograph in your own feces, I think that would fall out of the category of “copy” and into the category of original artwork. The difference in media alone would seal it. It might stink, but it would still be yours.

Ender’s last post brings up the critical grey area. If they’re straight photographed copies of copyrighted photos (say it three times fast) then it’s illegal, immoral and fattening.

But if, by chance, through the re-photographing, the “artist” is adding to, building upon, or commenting upon existing work to the extent that something new is created, then possibly this would be okay. Depends on how much is new, how much relies solely on the “artist’s” new slant. The process of artistic development is always to build upon, expand beyond what has gone before.

Of course, sometimes what happens is just that someone rips someone else off.

10

'Scuse me, I’m off to mail a large number of unsealed envelopes to myself. . .

I don’t think that would hold up in court, SPOOFE, but IANAL.

11

This non-lawyer thinks that Spoof’s method would work well.
Quotes from http://www.templetons.com/brad/copymyths.html :

The mail-trick allows you to time-stamp your work: registering your work at the copyright office fulfills a similar function.

Furthermore, you can’t legally use somebody’s else’s work without there permission, even if you build on it:

[sub]Copyright Flowbark. All rights reserved[/sub]

12

As I seem to be fighting a never-ending battle for truth, justice, and the protection of copyright, here’s my take:

  1. The original photographers hold copyright over the use of their work. If the copier doesn’t give attribution and then makes a profit on that action, she’s in violation of copyright and is liable for compensatory damages. There could even be the issue of jail time, but I’ve never actually run into a case that went that far.

An example of the above would be the production of prints based upon a copyrighted photo or painting. Attribution must be given (i.e. somewhere it must say Copyright, 1999, Joe Blow Photos) and the original artist has to either waive their right to compensation or be compensated in some way for the use of their work.

Now, if the copyright has ended attribution is still required, but no compensation is necessary. The most famous example of this in the world is the movie, “It’s a Wonderful Life”. Through a technicality it fell out of copyright and became public domain. That’s one of the reasons that it’s shown so often during the Christmas season, no one has to get paid to broadcast it. You could show it on the face of the moon and you’re off the hook.

  1. No, it would not. Copyright law assumes that a person using a work that falls under copyright protection give proper attribution. See above example. Selling a reproduction of any copyrighted work and not giving attribution is fraud. Imagine if the photographer in question was a painter, she painted the best forgery of the Mona Lisa the world has ever seen, then sold it to a collector as the original. That can lead straight to jail, do not pass go, do not collect $200.

  2. I would not. But I’m a freak about copyright. Ask idiotboy sometime. I admit, I could see some strange ‘art’ thing that could lead me to purchase something like this, but I think attribution would be required. Near as I can tell, if there was no attribution (and compensation) I would not be liable for receiving stolen merchandise, but I’d certainly be vulnerable to having the item seized and being questioned as to where I got it.

  3. It would not. The example to use here is the ‘sampling’ lawsuits of the mid and late 1980s. Artists were sampling other musicians performances (Tone-Loc, anyone?) and not giving attribution or compensation to the original performers. Eventually, it was settled that sampling could take place (and frankly, couldn’t be prevented) but that the sampler had to acknowledge where the samples came from and compensate the original songwriter and performer. Thank you ASCAP!

  4. As a matter of fact there are examples in which it is no different. If an image or object has been copyrighted or trademarked then selling a photo of it without permission is illegal. I remember a case 10+ years ago regarding that ‘lone cypress’ out in California somewhere. The firm that owned the land the cypress was on had tradmarked the cypress and its image. When they caught people selling photographs or paintings of it (and it is a striking image) they had the right to sue for cease-and-desist and damages.

If, however, no one has bothered to trademark the image (a very specific form of trademark) then have at it. You can take a picture of a building in your town at will. Just check first, if it’s famous.

God, am I the biggest copyright freak on the SDMB or what?

13

As a photagrapher, my first thought on this is: What a JERK! I’ve spent many years learning my art. A lot of the technical aspect of what I’ve had to learn is going by the wayside now with digital photography and great chips in camera meters. That’s to the good in my mind, as long as it works properly.

But, as a documentary photographer, the greater part of the time I spend is not in the finite piece of film. Most of the time is spent in finding a comfortable relationship with the people I photograph. This takes a great deal of effort. This time and effort has cost me a lot in terms of holding a regular job with all of the benefits. The reason I did it was that I felt the outcome was worth the sacrifice: what I saw was important for the community at large to see.

In addition to all that: I’ve spent ten years scraping pennies to get the chemicals and paper to see that vision through. My subject was Blues musicians in Mississippi. At the time I started, not many were doing that. Now, many have documented it, but no one who was living there day to day. I’m proud of my work, because it shows a different, and hard won, perspective. But it really took a lot out of me, both monetarilly and spiritually.(It also gave me more than I can ever repay.)

With that in mind, this “artist” may be making a commentary on the nature of photography as a vampiric art. Depending on the material “taken”, it may be a valid response. In terms of photographic history, it sounds rather sophomoric to me.

As to legal issues, a simple possession of the negatives would pretty much decide ownership. A copy negative is apparent compared with a normal film sequence.

14

I will assume you are talking about the moral implications, not the legal, as those would be best adressed in General Questions.

From what I see, I think she is morally in the right. I think her artistic statement is in the process of photographing the other photos. In other words, she is selling the artistic statement of blatantly copying photographs, as opposed to selling the photographs as themselves.

After all, all art is ultimately derivitive, just some more than others. If she is createing a new artistic statement, I think it is valid.

If she was simply leaching off of other people’s work to make a buck, I’d call her a vile vampire evil person.

15

I will assume you are talking about the moral implications, not the legal, as those would be best adressed in General Questions.

From what I see, I think she is morally in the right. I think her artistic statement is in the process of photographing the other photos. In other words, she is selling the artistic statement of blatantly copying photographs, as opposed to selling the photographs as themselves.

After all, all art is ultimately derivitive, just some more than others. If she is createing a new artistic statement, I think it is valid.

If she was simply leaching off of other people’s work to make a buck, I’d call her a vile vampire evil person.

16

IANAL, but have had some exposure to the new copyright law. Do not take my summary as accurate; if in doubt, contact a good lawyer with experience in copyright law.

Under the revised Copyright Law, you hold copyright on any material you have not “published” – made available on a public medium, including the Internet.

Once you “publish” it without a copyright notice, you have released it into the public domain, unless the medium through which you publish it copyrights the contents of its publication, as the Chicago Reader, Inc., does the material on this board. I would have ceded this post into the public domain, save for the Chicago Reader’s rights to it, if I had not concluded it with a copyright notice.

This notice is fraudulent for the simple reason that I have not placed a legally valid name as copyright holder. If you hold a D/B/A name, such a name is equally valid as your own personal name, and, as is obvious from the Reader’s rights, a corporation is a quite valid entity to hold a copyright (it being a legally protected form of intellectual property.

The former requirement to file two copies of any copyright material with the Library of Congress is no longer a requirement but remains in place. The effect, today, is that the Library of Congress becomes, in effect, your witness as to the fact that, and when, you placed the published material under copyright protection. If you fail to do so, but do put a valid copyright notice, on the material, you retain copyright but are obliged to prove it yourself without government aid.

Any obvious means of declaring copyright is usually satisfactory. So one of the three: the copyright symbol – letter c in a circle --, ©, or the word Copyright; followed by the year of copyright; followed by the copyright holder; optionally followed by “All rights reserved” or a statement of license, conserves your copyright to you.

[sub]This post is © 2001 by Polycarp and by The Chicago Reader, Inc., under the terms of posting on The Straight Dope Message Board. All rights reserved, except that this post may be quoted in whole or in part for non-commercial purposes with notice of copyright attached, and may be quoted on this thread without such notice.[/sub]

17

People who take pictures of other peoples double posts, however, ought to be drug out in the street and shot.

18

I have often wrestled with situations close to the one described in the OP. The funny thing is, whereas most posters think that the copycat photographer that Ender described is a scumbucket, I doubt that most people would consider the perpertrators (sp?) I’ve dealt with to be as slimey.

The perps I’m referring to are museums, libraries and archives. Take a painting or photograph that was created decades or even centuries ago; these images are obviously in public domain, right? Yes and no. The museum cannot copyright the original anymore, but they can copyright their photograph of the original – the rights to which they defend ferociously. Is this fair, especially if these originals reside in a publicly-funded institution?

When you think about it, they are doing the exact same thing that the OP photographer is doing (presuming that she’s shooting non-copyrighted originals). Let’s face it, the Louvre didn’t paint the Mona Lisa – they merely possess it – yet they continue to milk money from users as if they were the creators. Personally, I find this whole corrupt game that museums play reprehensible. Trouble is, no one is looking out for the public in “public domain.” (Actually, I take that back; Steve Forbes agrees with me that intellectual property rights have gotten out of hand in favor of “creators.” Go Steve.)

19

Right, that’s my understanding of it. I just don’t see how a postmark on an envelope would serve as a legally-binding timestamp, since it would be so easy to fake, if a person thought ahead and had an immoral bent. But, then, since when has the law made much sense?

20

IANAL (love those acronymns) BUT… I suspect that the above method is comparable to the use of a written diary or a checkbook record. It is of course possible to fake a postmark and I suspect that if push came to shove that you might have to sign an affidavit saying that the postmark was genuine. Still, I would think that the postmark, plus your sworn statement, would be given some weight. I agree that it would be better to formally register your work though.